Red Bank votes for local economy, end to snarlings in name of ‘safety’

(This story first appeared when Red Bank voted to banish the traffic camera system. It explores the queer jurisdiction of city courts and the mixing of civil and criminal cases.)

Red Bank, a small municipal corporation nestled along the northwest border of Chattanooga, voted today to end its contract for a for-profit Arizona business to run its red-light camera system.

The cameras will be shut down in January, a delay required under terms of the town’s contract with American Traffic Service. That’s none too soon.

People are quoted in press reports as saying the town’s four red-light cameras kept them out of town. “I think it will show a new beginning for Red Bank,” Mayor Monty Millard said. “We’re doing everything we can to be friendly and attract business.”

I am a motorist who avoids Red Bank as a prickly place through which to travel. If I don’t have to drive into the town, I won’t. Friends and sons have made similar comments. The ending of the program gives Red Bank an element of grace and forbearance it has refused to give for the past six years.

The deletion of the F$50 fine-in-the-mail system makes the people and government in the town more approachable, more hospitable. Red Bank is no longer irritated!

The camera trap highlights a problem in Tennessee law that touches on the loss of ancient liberties as a free people. The plaintiffs in the lawsuit got tickets in 2008 and raised important questions about the hybrid jurisdiction of traffic court, one I looked at earlier in an interview with attorney Mike Little, whose photo is on Page B1 of today’s Times Free Press’ coverage of the Miles Stout pistol-discharge murder trial.

In a nutshell, the conflict as it played out in court is over creation of a quasi-criminal and quasi-civil jurisdiction that seems to arise from the presence of the nanny state and administrative law. The questionable realm is in the news in federal jurisdiction in a story in Wired magazine about “administrative searches” in which companies are compelled to hand over records of their clients absent a judge’s signature (“We Don’t Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena,” Wired.com).

A queer jurisdiction — needed by office types

From 2006 through 2011, the town issued 69,158 citations under the toothy authority of Title 15 of its city charter. Red Bank is a corporate creature of the Tennessee General Assembly and has a grant to operate a hybrid form of law that gives the power of arrest in what is ostensibly a civil or contract matter.

The owner of a car photographed violating the light change custom is sent a citation letter. The letter is based upon “a sworn statement signed by an officer or contractor of the Red Bank Police Department,” upon whose oath the demand is mailed. The person receiving the citation is told how he may contest it, and that if he does not, “a default judgment may be entered thereon.” Since the car title holder is cited, he can deny in proceedings that he was at the wheel in a given incident.

The ordinance being vacated insists that “no third party contractor” is allowed to administer the system. The citation is not given proper legal service by way of a sheriff’s process server, personally delivered as in any real civil dispute, but “by first-class mail.”

The alleged offenses are tried in Red Bank city court. That venue is called an inferior court under Tennessee law. City court has limited jurisdiction and gives defendants a bench trial only — that is, a trial in which the judge decides both fact and law. They are tried under a civil standard — preponderance of evidence, or 51 percent of the evidence. Criminal cases are decided strictly on the “beyond a reasonable doubt” standard.

The jurisdiction of such courts violates the distinction between criminal law and civil law. These courts combine them for the convenience of administration, making it far easier for civil government to impose itself on members of the public.

Briefly, Americans have the two types of law because there exists a difference between the objects the law seeks to pursue — redress or punishment.The object of civil law is to fix wrongs by compelling compensation or restitution; the wrongdoer isn’t punished, he only has to make good his wrong. The victim gets a definite benefit from the law, or at least avoids a loss. Criminal law in the modern understanding seeks to punish the wrongdoer. It seeks by punishment (pure abuse of the perpetrator) to give a strong inducement not to engage in similar crimes, reform him or satisfy the people’s view that evildoing should be met with retribution. (Black’s Law Dictionary, 8th edition, civil law)

In the Red Bank code, people snared by the cameras are called “civil violators.” Is such a person a criminal? If the matter is civil, is his running a red light a tort? Who was injured? I haven’t read the initial pleadings, but make my observations on the basis of Hamilton County chancery court Judge Frank Brown ruling in September 2010 and the brief of the defendants.

According to Judge Brown, the plaintiffs objected to the decriminalizing of traffic offenses. I believe the plaintiffs were seeking to make prosecution for traffic offenses much more difficult by bringing to the situation the constitutional protections in criminal proceedings. Primary among these is the jury trial. City corporations don’t like full-bore criminal trials for length and expense. So inferior courts exist to keep people out of real court and let them dispatch of traffic accusations against them in an informal setting — city court.

A judge’s gentle ribbing

In seeking relief, the plaintiffs sought to raise the bar for all traffic prosecutions. They sought to defend the right to a jury trial, the right of presumption of innocence, the right to be found innocent unless guilt is proven beyond a reasonable doubt, and protection from double jeopardy. The defendants argue that these protections are constitutionally irrelevant if the fine is below F$50.‡

Judge Brown frames the issue in such a way as to make the attack on the hybrid jurisdiction look silly. It’s as if he were saying, “You mean you want to be criminally charged?” He is gently ridiculing the call for a high barrier against the use of police in civil cases.

In his ruling he says municipal courts have authority to act and impose F$50 fines in a civil context.

Although the court understands the issues, one interesting point is that plaintiffs claim the ordinances are invalid because they were not “punished” as much under the camera ordinances as they would be under state law. Most persons speeding, when caught by a police officer, would be happy if the offenses did not jeopardize their driving privileges under the points system and the monetary penalty did not include court costs in addition to the fine.

I wonder to what extent this decision overlooks arguments that deserve to have been made about the importance of a clear criminal/civil distinction. Judge Brown, then, is consenting to the use of arrest, booking and jailing in a civil matter. The Tennessee bill of rights forbids the legislature from authorizing imprisonment for debt in civil cases (section 18). A civil matter is a dispute between two parties who have a difference over a contract or right. He is gently making fun of the plaintiffs’ argument calling for a high use of the police officer.

However, the more sharply the distinction remains in American law separating criminal and civil, the more easily can a once-free people keep their noses above a rising tide of bureaucratic law. For city court operates in this vague public policy arena of adminstrative law. Such law is the greatest single threat to the Western legal tradition and therefore to Western liberty, according to economist Gary North, citing the 1983 classic by legal historian Harold Berman (Law and Revolution). Administrative law is the means whereby Penn State was able to keep homosexual child abuse under wraps and is means whereby liberties have to be defended first within an agency before they can be defended in a real court of the people. (See Dr. North’s essay on this jurisdiction, “The Paterno Affair and Western Liberty.”)

Public safety rationale to go begging

The closure of the Red Bank camera system offends backers such as Red Bank commissioner Ruth Jeno whose primary interest in their defense is public safety. Public safety is the mantra that covers many modern tyrannies. Many tyrannies of the modern state exist even though testimony shows clearly that they in fact are injurious to public safety or have no rational connection to it.

The end of the Red Bank system is a tiny step in the Chattanooga area away from the use of this criminal/civil/administrative jurisdiction that lacks even proper civil process to a civil defendant. For freedom-loving people, such venues are a blot against liberty. One little plundering operation is coming to an end.

Ideally, no policeman ever has contact with a citizen unless he is investigating a real crime, either at common law or under statute. The police should not come into use as enforcers of implied or pseudo contracts, which is what civil law is all about.

About The Author

David Tulis hosts a talk show weekdays 1 to 3 p.m. on NoogaRadio 92.7 FM 95.3 FM HD4 (digital), covering local economy and free markets in Chattanooga and beyond. Nothing on this website should be construed as legal advice; all discussions about law and practices favoring a free people are opinion and educational; if you want legal advice consult a licensed attorney.

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